1.This Appeal is against the Judgment of the Senior Principal Magistrate in Busia CMCC No. 164 of 2019, in which the Appellant/Plaintiff’s claim for the sum of Kshs. 660,000/- and general damages for breach of contract against the Defendant/Respondent was dismissed with costs to the Defendant for being time barred.Being aggrieved, the Appellant prepared the Appeal on the basis of the grounds set out in the Memorandum of Appeal dated 8th July, 2021 and filed herein on 16th July, 2021.
2.The hearing of the Appeal proceeded by way of written submissions which were filed on behalf of the Appellant by B.M. Ouma & Co. Advocates and on behalf of the Respondent in opposition to the Appeal by Ashioya & Co. Advocates.The Appeal together with the rival submissions have been given due consideration by this Court whose role was to revisit the evidence and draw its own conclusions bearing in mind that the trial Court had the advantage of seeing and hearing the witnesses.
3.In that regard, the Appellant in the Plaint dated 16th June, 2017, pleaded that on or about the 13th April, 1990, the Defendant agreed to sell to him a parcel of land measuring 100 x 100 ft situated at Bumala market centre and registered as Marachi/Bujumba/1169 for an agreed price of Kshs. 26,000/- which was fully paid to the Respondent/Defendant. Thereafter, the parties obtained the necessary consent of the Land Control Board and executed the necessary transfer forms on 22nd April, 1992.
4.However, due to frustrations by the Respondent against the Appellant the property was never registered in the name of Appellant as the Respondent failed to avail the original title to the Land Registrar for necessary alterations and registration of the property in the Appellant’s name. Instead, the Defendant/Respondent transferred the property to a third party called Wanende Eugene Owino.
5.The Plaintiff contended that by a written agreement dated 8th August, 2016, the Defendant bound himself to Respondent a sum of Kshs. 700,000/- to the Plaintiff being the agreed current market value of the property. A part payment in the sum of Kshs. 40,000/- was made by the Defendant who refused, failed and/or neglected to pay and settle the outstanding balance of Kshs. 660,000/-. The Plaintiff therefore prayed for the outstanding balance together with general damages for breach of contract against the Defendant.
6.The Defendant/Respondent denied the claim on the basis of the averments contained in his statement of defence dated and filed herein on 19th September, 2017.At the hearing of the case, the Appellant, Christopher Oduor Makokha testified and availed necessary documentary evidence in support of the claim. He did call two witnesses i.e. John Mabiri Okwaro (PW 2) and Isaac Metto Okwaro (PW 3).The Respondent, Jairus Owino (DW 1) also testified and called no witness.
7.The trial Court considered all the evidence availed by the parties and rendered its Judgment on 7th July, 2021, dismissing the Appellant’s claim for being time barred.In arriving at that conclusion, the trial Court remarked:
8.Having re-considered the matter afresh, this Court would agree that the Appellant’s claim was founded on a contract of sale of land entered between the Appellant and the Respondent on the 13th April, 1990. The handwritten agreement (PEX 1) was apparently signed by both parties and dismissed by John Maberry or John Mabiri Okwaro (PW 2) and Isaac M. Okwaro (PW 3) on the same day.The agreed purchase price was the sum of Kshs. 26,000/-.
9.It was therefore evident that the cause of action rose on the 13th April, 1990 when the agreement was made. This case was formally filed on 16th June, 2017 approximately twenty seven (27) years after the cause of action arose.Under S.4 (1) of the Limitation of Actions Act, actions founded on contract may not be brought after the end of six (6) years from the date on which the cause of action accrued. In as much as the Appellant submitted this suit way past the prescribed time for such action, he fell foul of the aforementioned provision of the Limitation of Actions Act as there was no extension of time by the Court at his instance.
10.The subsequent agreement made on 8th August, 2016 between the parties (P.EX 4) was a separate agreement anchored on the previous agreement but being treated as an extension of the previous original agreement dated 13th April, 1990 which was the basis of this matter. In any event, the subsequent agreement could not purport, as it did, to revive the previous agreement which had expired approximately twenty six (26) years ago and was “as dead as a dodo”.In the circumstances, the Appellant, could not find solace in S.23 and S.24 of the Limitation of Actions Act.
11.The trial Court was correct in finding that the Appellant’s claim was time-barred.Besides, it is worth of note that whereas the original agreement dated 13th April, 1990 related to a parcel of land described as No. Marachi/Bujumba/1120, the subsequent agreement dated 8th August, 2016 related to a parcel of land described as plot 1169 which is actually Marachi/Bujumba/1169 and indicated in the transfer form (PEX 2(b)) dated 22nd April, 1992.It would therefore follow that the cause of action related to parcel No. Marachi/Bujumba/1120, thereby implying that parcel No. Marachi/Bujumba/1169 was irrelevant to this suit and for purposes of the Limitation of Actions Act.
12.In sum, this Appeal is wanting on merit and is hereby dismissed with costs to the Respondent.Ordered accordingly.